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legal experts – The Mercury News

When Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to more than 11 years in prison last week, he ordered her to surrender for prison on April 27. But legal experts say Holmes could remain free well beyond that date.

After Davila Holmes, 38, was sentenced on four counts of felony fraud, one of her attorneys told him in the courtroom that her legal team planned to file a “motion for bail pending appeal” that would allow her to be released from custody to stay while she registers against the appeal. jury’s verdict.

If Davila grants that request — or if he denies it, but Holmes gets the appeals court to approve it — she could significantly delay her prison sentence.

“It could be a year from now, it could be 15 months from now,” said David Cohen, legal representative of the Bay Criminal Defense.

Holmes was convicted in January on four counts of defrauding investors in her now-defunct Palo Alto blood-testing business out of more than $144 million. She is pregnant and the mother of a 15-month-old son, born weeks before the start of her four-month trial.

Holmes remained free for the duration of her four-year criminal case; therefore, it is unlikely that Davila or the 9th Circuit federal appeals court that will hear her appeal will decide that she is a flight risk or threat to the public, and deny her motion for bail pending appeal on any basis, legal experts said.

Whether Holmes manages to stay free until the end of her appeal will come down to one question, Redwood City criminal defense attorney Dean Johnson said: “How much meat is there to this appeal?”

Davila will be the first to examine that question, as Holmes’ motion for bail pending appeal will go before him, after she files her notice of appeal within the next week or so. Her lawyers will argue that Davila erred in one or more rulings during the case. For Davila to grant Holmes’ motion to stay free pending appeal, he would have to decide that other, reasonable judges might have decided differently than he did about the decision or decisions in dispute, and that Holmes would likely succeed in her appeal if the appeals the court agreed he erred.

Johnson said he believes Holmes has a good chance of getting Davila to keep her free until the end of her appeal.

“If someone like Holmes, who is not a danger to society, has arguments that she can make on appeal, and they are reasonable arguments, judges tend to let them go,” Johnson said.

Decisions by Davila on issues such as a defunct database of patient test results, conflicting arguments by prosecutors in the trials of Holmes and her co-defendant Sunny Balwani, and the appearance at Holmes’ residence of a distraught key prosecution witness could have been decided differently by other judges, Johnson said. Davila, while agreeing with his own rulings, could nevertheless decide that other hypothetical judges might have decided differently, and that an appeals court could rule in her favor on those issues, Johnson said.

If Davila denies her motion, Holmes could ask the 9th Circuit to review its decision. A two-judge appeals panel would apply the same standard Davila had, appealing to hypothetical reasonable judges, and could allow her to stay out of jail until the appeals court rules on her appeal.

Holmes could also ask Davila to delay her surrender date, for example, based on possible pregnancy complications or needs of her upcoming newborn, Cohen said.

And if Holmes fails to get Davila or the 9th Circuit to release her on bail, she could appeal to the U.S. Supreme Court, Cohen said. However, he added, “It would be unlikely that the Supreme Court would grant bail if the 9th Circuit says no.”

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